Does a Senate trial of President Trump need witnesses?

Once the Articles of Impeachment against President TrumpDonald John TrumpTrump suggests Sotomayor, Ginsburg should have to recuse themselves on 'Trump related' cases Sanders says idea he can't work with Republicans is 'total nonsense' Sanders releases list of how to pay for his proposals MORE are transmitted by the U.S. House of Representatives to the Senate, it is likely that a motion will be made to dismiss them as legally insufficient. In a normal court case, the presiding judge would resolve such a motion. In an impeachment trial, the senators will be the judges of both the facts and the law. Therefore, the motion to dismiss will be put to a Senate vote, as occurred in the Clinton impeachment trial.

In the Clinton trial, the motion to dismiss was defeated by a vote of 56 to 44. Immediately thereafter, a vote to hear witnesses was passed by the same margin.  

Several arguments will be made in favor of a motion to dismiss. President Trump’s defense team will argue that, because the articles charge abuse of power and obstruction of Congress and not a criminal act, they fail to meet the constitutional standard of high crimes and misdemeanors.  

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This defense raises a key issue about the role of impeachment in our system of checks and balances. President Andrew Johnson was tried, and acquitted by a single vote, for failing to follow non-criminal laws passed by Congress with respect to Southern reconstruction. Only one of the three articles against President Richard Nixon voted by the House Judiciary Committee charged a crime; the other two charged abuse of power and obstruction of Congress. Nixon resigned, however, before the sufficiency of these articles could be tested. Clinton was tried for alleged criminal conduct, perjury and obstruction of justice. 

If the Senate votes to dismiss because no crime has been charged, that act will tip the scales sharply in favor of unaccountable presidential power, contrary to the Framers’ intent. They were clear that there needs to be a check on presidential power in addition to quadrennial elections. One Founder said that an unchecked president might subvert the Constitution and then “spare no means or effort whatever to get himself reelected.” Breach of trust was also thought to be grounds for impeachment, though not a crime. James Madison said presciently that a president “might betray his trust to foreign powers.” 

The president’s team likely also will argue that the articles should be dismissed because no factual disputes require resolution and the undisputed facts are insufficient to support removal. This ignores the fact that the president’s motive for the conduct in question is both in dispute and outcome determinative. Let’s look at the record. Because President Trump has vouched for the accuracy of the memorandum of his July 25 call with Ukrainian President Zelensky, it is undisputed that he asked the Ukrainians to conduct two investigations. The call memorandum also shows exactly which investigations Trump wanted.  

The first was to investigate the claim that Joe BidenJoe BidenSanders defends Castro comments in wake of backlash from some Democrats Klobuchar releases medical report that says she's in 'very good health' Candidates face pressure to exit presidential race MORE, while he was vice president, “shut down” a “very good” prosecutor to stop the prosecution of Burisma, a Ukrainian company on whose board Biden’s son served. This claim is fabricated. The evidence is that the prosecutor was corrupt, there were widespread calls for his ouster in the international community, Biden was acting pursuant to established U.S. policy in demanding his ouster, and that ouster did not terminate an investigation of Burisma.  

The second requested investigation concerns the claim that it was Ukraine, rather than Russia, that hacked the Democratic National Committee. Trump spoke of “Crowdstrike,” “one of your wealthy people,” “the server — they say Ukraine has it,” and that a lot of what former special prosecutor Robert MuellerRobert (Bob) Swan MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE investigated “started with Ukraine.” From all that appears, this claim also is fiction.

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These undisputed facts create what lawyers call a strong inference that Trump’s motive in seeking these Ukrainian investigations was corrupt — to damage his political opponent with a contrived cloud of suspicion and to call into doubt whether Russia aided Trump’s election in 2016. Yet a strong inference, while sufficient to show probable cause for impeachment by the House and preclude a dismissal in the Senate, is not necessarily sufficient to end the matter. The question of motive remains a question to be tried under a standard approaching, if not equal to, proof beyond a reasonable doubt. 

Much the same can be said for Trump’s motive in holding and then releasing aid to Ukraine. There is again a strong inference, based on timing and the testimony of those seeking to secure the investigations sought by Trump, that his motive was corrupt. Again, this evidence is enough to support impeachment and preclude dismissal but not necessarily sufficient to determine the outcome.

Finally, the defense may call for dismissal by claiming that the House’s impeachment process was defective. This argument is untenable. Trump was given greater rights in the House than was Nixon to participate in the public examination of witnesses and otherwise present a defense before the Judiciary Committee (a right the president declined to use), and in all events the House has the sole power of impeachment, just as the Senate has the sole power to try impeachments. That power includes the power to decide process at least absent egregious oppression.

This, then, brings us to the question of witnesses. The trial of impeachments, as understood by the Framers, included witnesses. In England, Edmund Burke was conducting the impeachment trial of the Governor General of Bengal, Warren Hastings, while our Constitution was being written. An important witness for the defense at that trial was Lord Cornwallis, who not long before had surrendered to Gen. George Washington at Yorktown. 

Witnesses also were important in the trials of Andrew Johnson and Bill ClintonWilliam (Bill) Jefferson ClintonDo Trump and Sanders hate America? Ex-CIA chief calls Trump intel shakeup a 'virtual decapitation' of the intelligence community Meghan McCain after Gaetz says Trump should pardon Roger Stone: 'Oh come on' MORE. Had Richard Nixon not resigned, any Senate trial would have involved witnesses to Nixon’s obstruction of justice and such abuses as his “enemies list” and the “plumbers” — a covert squad run from the White House. 

Moreover, a standard requiring proof of corrupt motive beyond a reasonable doubt is unworkable without witnesses. Testimony of witnesses who spoke directly with the president can raise or dispel doubts about motive and should be given the chance to perform that essential function.

Evan A. Davis, an attorney, was a member of the U.S. House Judiciary Committee Impeachment Inquiry staff in 1974 and led the Watergate and Cover-up Task Force. He also is a former counsel to New York Gov. Mario Cuomo and was president of the New York City Bar Association (2000-2002).